NJAC: A Necessary Evil?

Siddharth Sekhar Barpanda

There is little doubt that Indian citizens from all walks of life are tired of the slow process of reforms customary in the nation. There is also a valid reason to blame the Government (of the day) for the sorry state of affairs. Democracy is work-in-progress and it takes time to build institutions capable of meeting the demands of an aspirational society. But, is it only the Executive and the Legislative pillars of democracy, which to a large extent overlaps in the Indian context, are to be held responsible for bad governance? Isn’t the Judiciary, if not wholly, but nevertheless partially liable?

Pendency (of Cases) & Vacancy (of Judges) Galore!

Let’s first look at some current issues distinctive and ubiquitous to Indian judiciary. The access to speedy justice is still a dream for the majority of the citizens. The courts in India are famous for their long & arduous process of delivering justice. No wonder, the pendency of cases in courts are rising day by day. In the Supreme Court of India alone, the pendency of cases stands at 61300 (as on 1st March 2015). Similarly, across the nation’s 24 High Courts, cumulatively more than 4 lakh cases are pending. These astronomical figures in itself stand as an alibi to the poor functioning of Indian judiciary.

Of course, for a country of 1.27 billion people, this may seem defensible. Yet, the higher judiciary cannot hide behind the veil of a large population. Even so, the pendency of cases is related to the quantity & quality of Judges. The Law Ministry has itself in its annual report claimed that Shortage of judges in courts is one of the main causes for backlog and pendency of cases in courts.As on 1st August 2015, there are 3 vacancies in Supreme Court of India against the approved strength of 31 (including Chief Justice of India). Moreover, there are 384 vacancies in all 24 High Courts against a total approved strength of 1017.

The Need for NJAC

So basically, the vacancies only in Supreme Court and 24 High Courts amounts to 36.9% of the total sanctioned strength. Note that, this doesn’t include the District & Subordinate Courts. Also, it’s true that many appointed judges lack competency and credibility. Justice Rama Pal, a former judge of the Supreme Court described the process by which a judge is appointed to the High Court or the Supreme Court as, “one of the best-kept secrets in this country”!

It is in this context, the need to have a comprehensive, transparent and a robust mechanism to select judges of the SC and HCs was initiated. Subsequently, the National Judicial Appointments Commission (NJAC) Act, 2014 and the corresponding Constitutional Amendment Act came into force on 13th April 2015, after the Parliament passed it by a special majority followed by ratification of the new legislation by 16 State legislatures, and subsequently assented by the President of India.

The Impact on Governance

However, some Public Interest Litigations (PIL) challenged the constitutionality of the NJAC on the ground that it affects the independence of the judiciary that forms part of the basic structure of the Constitution, which is inviolable. A 5-member bench, set up by the Chief Justice of India, is now hearing the validity of the legislature’s decision to do away with the two-decade-old collegium system of judicial appointments.

Without going into the larger philosophical debate of whether the Government or the Supreme Court has the right to invoke the basic principles of Constitution, it’s important to address the inconvenience caused to the citizens due to this ideological tussle between the Government and the Supreme Court. On April 27, 2015, the Chief Justice of India informed the Prime Minister that he would not join the NJAC panel until the SC decides on the validity of the new system.

As eminent and distinguished lawyers argue the controversial case in the SC, the vacancies in the higher judiciary are increasing every passing month.

Judges Vacancies in HCs

1st May 2015
366

1st June 2015
371

1st July 2015
377

1st Aug 2015
384

The need of the hour is that the democracy should function for the larger public good as opposed to the ongoing supremacy struggle between the different pillars of the state.

(Siddharth Sekhar Barpanda is a graduate student of Master of Public Policy in the National Law School of India University. He can be reached at ssbarpanda@nls.ac.in)